Can Kashmir issue be resolved by International Court of Justice?
Declassified British archives are a reservoir of information which elaborate on the answer to the question of why the British partitioned colonial India and also provide inputs on a plethora of related events, which elaborate on the very genesis of the Kashmir issue. This is what Aman Hingorani, a fourth generation lawyer, decided to do, as suggested by his father, in his book, Unraveling the Kashmir Knot. With all that is happening in the Kashmir Valley, this book must be read by all involved in meaningfully resolving the contentious issue.
These archives reveal that the British needed the predominantly Islamic and strategic north-western slice of undivided India to add on to and extend the ideological Islamic barrier stretching from Turkey to the Chinese border, to prevent the then Soviet Union from dominating Central Asia. Partitioning this crucial region to create an accommodating and reliable sovereign state in the Indian sub-continent, ‘Pakistan’, would complete this crescent, as Britain’s master ploy in the Great Game.
Unravelling the Kashmir Knot
Aman M. Hingorani
Pages: 386 in hard cover
Price: Rs. 995/-
Post 1857, the British propped up the Muslim League to counter the political threat of the Congress to their colonial rule. The idea was to use the Muslim League to demand ‘Pakistan’ ostensibly on the basis of the two-nation theory, which asserted that Hindus and Muslims could not live peacefully together in one country and were to be considered as two separate nations in every respect. It was in a pamphlet titled ‘Now or Never; Are We to Live or Perish Forever’ written and published by Choudhary Rahmat Ali, in Cambridge, on 28 January 1933, in which the word Pakstan (without the letter “i”) was used for the first time and was presented in the Round Table conferences in 1933, at the behest of Winston Churchill.
Floating several plans to partition the Indian sub-continent, the British identified and hand-picked the politically ambitious (and secular) barrister M. A. Jinnah to propound the two-nation theory. For pork-eating and religiously non-pious Jinnah, ‘Pakistan’ was more a means of grasping power, rather than any conviction of creating an Islamic state.
At the 1945 Simla Conference, the British projected Jinnah of the Muslim League as the sole representative of all Indian Muslims, even though he had little or no support among them. The British outwitted the Indian leadership into letting the Congress–ruled North West Frontier Province go to Pakistan and were complicit in Jinnah’s ‘Direct Action’ leading to a bloodbath in Bengal, Punjab and other parts of the country that ultimately compelled the Indian leadership to accept Partition. They set people against each another, like they did to disintegrate the Ottoman Empire. They encouraged traditional Hindu-Muslim differences to deteriorate into a killing frenzy.
Both India and Pakistan were partitioned by creations of British statutes enacted to give effect to the political agreement driven by the British and the Muslim League, and eventually accepted by the Congress. According to this agreement, the provinces were to be partitioned according to the two-nation theory conceived by the British to create Pakistan. However, all the princely states were to regain full sovereignty and that sovereignty vested in the ruler, regardless of the religious complexion of the people of that state. It was the ruler alone who could offer accession. These British statutes were accepted by India and Pakistan. However, the accession of Jammu and Kashmir (J&K) to India would adversely impact the Great Game for the British and defeat the very rationale of creating ‘Pakistan’.
The British did not need all of J&K. They just needed the Northern Areas of J&K, including Gilgit, for the Great Game with the Russians and the portion known as ‘Azad Kashmir’ to protect Pakistan from liquidation, should India go to war with Pakistan.
J&K acceded to India on October 26, 1947. On October 30, 1947, the British effected a coup in strategically located Gilgit to hand it over to Pakistan. ‘Azad Kashmir’ was captured by Pakistan-led Tribals with the collusion of the British, whose officers headed both the Indian and Pakistani armies. India remained a British dominion till 1950. Till 1948, India’s Kashmir policy was being formulated by Mountbatten heading the Emergency Committee and the Defence Committee of the Indian Cabinet.
The author observes that it was overlooked by Nehru that once a political decision is crystallized into law, the executive has to accept it because it cannot act beyond its power. New Delhi acted beyond the scope of its power by promising self-determination and plebiscite in J&K. Terrorist movements in the guise of a freedom struggle are continuing because Nehru said that Kashmiris had the right to self-determination. We created the problem in the first place. Since then, the Indian policy seems to be of territorial status quo and of converting the LoC into the international border. That is, India would give up the territory of J&K occupied by Pakistan and China.
Since Independent India’s government created doubts about the unconditional nature of the accession of J&K to India, internationalized the Kashmir issue and conferred a disputed territory status on J&K, India as a first step, needs to confirm, as it were, India’s title deeds to J&K, which would clearly show that the whole of erstwhile J&K belongs to India. The only body that can look into this issue is the International Court of Justice (ICJ).
Why India never went to ICJ despite various acts by Pakistan, including barbarism by its Army and sheltering terrorists (who have spread terrorism globally), begs an answer.
A finding from the ICJ will be binding on both India and Pakistan and all other members of the UN. Otherwise, no one is going to listen to us. If the ICJ gives a verdict in India’s favour, then other nations will no longer be in a position to say that what is going on in J&K is a ‘freedom struggle’ and will have to ask Pakistan and China to vacate the territory of J&K under their occupation. A confirmation of the correct legal position by the ICJ will help alter the current political discourse and swing political opinion in India’s favour to create a momentum for winning the confidence of the people of J&K. This is of vital importance since it was New Delhi’s legally misconceived stand that the accession of J&K to India was subject to the reference of the Kashmiri people which created a feeling of injustice amongst them when no reference was held.
But law alone will not resolve the Kashmir issue. Past mistakes need to be undone as detailed in the book, which uncovers important history painstakingly hidden by some of India’s founding and floundering leaders. A ‘must read’ for many on both sides the Indo-Pak border and in countries concerned with both.